January 2, 2011

Public Domain Day 2011: Will the tide be turned?

This year’s Public Domain Day, the day on which a year’s worth of copyrights expire in many countries, is getting particular attention in Europe, where events in various European cities commemorate authors who died in 1940, and whose works are now in the public domain there.

Or, to be more precise, they’ve returned to the public domain there. Although the reigning international copyright standard, the Berne Convention, requires copyrights to run at least for the lifetime of the author plus 50 years, the European Union in 1993 mandated a retroactive copyright extension to life plus 70 years, to match the longest term in any of its member countries at the time. Twenty years of the public domain were buried by this extension. For at least the next 3 years, all we’ll be seeing in Europe is the old public domain re-emerging.

The public domain has seen losses and freezes in much of the rest of the world since. In 1998, after years of lobbying by the entertainment industry, the US enacted its own 20-year copyright extension. Thankfully, this extension only froze the public domain instead of rolling it back, but we will wait another 8 years before more publications enter the public domain here due to age. The 1998 extension was just the latest of a series of copyright extensions in the United States. In 1954, US copyrights ran a maximum of 56 years, so all of the works published before 1955 would now in the public domain here were it not for later extensions. (Instead, we still have copyrights in force as far back as 1923.)

There’s no clear end in sight to further extensions. Since 1998 I’ve steadily been seeing country after country extend its terms, often pushed by trade negotiations with Europe or the United States. “Life+50″ may still be the global standard, but bi-lateral and region-specific trade agreements have pushed terms up to “life+70″ in many countries around the world. Some countries have gone even longer — Mexico, for instance, is now “life+100″– making convenient targets for further rounds of copyright extensions in the name of international “harmony”.

There are some bright spots, though. Many countries continue to hold the line at life+50 years, including Canada (despite years of pressure from its southern neighbor). As of today, residents of “life+50″ countries are now free to republish, adapt, reuse, and build upon works by authors who died in 1960 or before, in whatever way they see fit. I hope to show some of what this means as I introduce listings from projects like Gutenberg Canada to The Online Books Page this year.

In the US, where many copyrights prior to 1964 didn’t run for their full length unless renewed, a number of digitization projects (most notably Hathi Trust) have been finding post-1922 works with unrenewed copyrights, and making them freely readable online. These works tend not to be the best-sellers or popular backlist titles, but collectively they embody much of the knowledge and culture of the mid-20th century. I’ve also been very happy to list many of these works over the past year.

At the same time, there’s been a growing awareness that copyright need not be “one size fits all”, particularly for works that no longer have much commercial value. This insight helped lead various authors’ and publishers’ groups to negotiate a blanket license to Google to make out of print works generally available online. The license, part of the Google Books Settlement, is not without its controversy or problems, and might or might not eventually get court approval. But it suggests political feasibility for similar efforts to free older, more obscure cultural and scholarly works now languishing under exclusive copyright control.

We’ve even seen at least one entertainment industry spokesman speculate out loud that re-introducing simple formalities to maintain copyright might not be such a bad idea. Such formalities are forbidden by the Berne Convention, so they could not be introduced across the board without re-negotiating that treaty. That would be no easy task.

But the recent round of copyright extensions may at least provide an opening for international experimentation. Now that copyright terms go past the Berne minimum in many countries, the post-Berne portion of the copyright term could potentially be made subject to requirements that Berne doesn’t allow (such as the renewal of copyrights in some suitable international registry system). That could not only free many older “orphan works” for reuse, but if it works well it could also lead to negotiating a farther-reaching international registry system. Such a system could make it easier both to contact copyright holders for permissions, and to free works for the public domain whose owners no longer cared (or who never did want) to maintain exclusive rights.

I’ve been practicing a self-imposed system of “formalities” myself over the last few years. On every Public Domain Day, I’ve been freeing published works of mine more than 14 years old, except for works where I explicitly opt to reserve copyright. (Copyrights in the US originally ran for 14 years unless renewed for another 14.) So: All works of mine published in 1996 for which I control the copyright are hereby released to the public domain. (Legally, you can consider them all to be declared CC0.) Much of the publication I did that year online can now be found through sites like the Internet Archive, which started crawling my web sites in late 1996.

I’d be very happy to hear about other gifts people are making to the public domain, as well as successes in bringing more of the public domain to light online, and in expanding the scope of the public domain as a whole. Happy Public Domain Day to all!

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“I’ve been practicing a self-imposed system of “formalities” myself over the last few years. On every Public Domain Day, I’ve been freeing published works of mine more than 14 years old, except for works where I explicitly opt to reserve copyright.” – Kudos, John!

Opt-in copyright is probably more work than it’s worth. As a reuser, it’s a pain to handle any but the most simple material. Novels are pretty easy to check. For a non-fiction book, you have to check every picture; was this copyrighted separately, or first published elsewhere? (That’s not trivial in a life+x system, either.) Movies seem to be hard enough that few get them right; if the movie company wants it bad enough, it seems like there’s always music or screenplay or story they can assert copyright in.

On the flip side, it seems unfair in a naturalistic commercial way. There doesn’t seem to be much difference between the science fiction authors who renewed everything, and those who didn’t, except for careful record keeping. Asimov apparently missed one, just because it slipped through the cracks, and other authors missed more, despite an apparent intent to preserve their copyrights. The sets of books that end up in the PD due to non-renewal seem almost random. The Night of the Living Dead was never meant to be PD.

I think the recent Greg Bear / Project Gutenberg spat is notable here. Greg Bear is married to the daughter of Poul Anderson, and Project Gutenberg has posted several of Poul Anderson’s works. Greg Bear managed to get PG to take one down; the novel version of the short story was printed the same year and was renewed, and PG had missed it because there was no note in the copyright records that there was any connection between the two. Other files by Poul Anderson are going to continue to be on PG, much to Bear’s frustration. If instead of an opt-in copyright system, short but fair copyright durations were used across the board, we wouldn’t have this problem, and we would have a coherent set of works going into the PD each year.